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“Take it to the limit” sang the Eagles in 1975, but what applies to unrequited love in that great rock ballad is lousy advice when it comes to building design. But “maxing out” the building envelope is trending in permit applications and one more reason why we need to change the zoning code to ensure a truly livable Berkeley.

Maxing out happens all over town, but the most severe strain on existing scale comes from designs that take advantage of the overly generous allowances in West Berkeley in the C-W (commercial west) and R-1A (limited residential) zones that were poorly conceived and written and that the City has refused to fix, despite years of appeals and referrals. The density bonus adds to the massing, usually one or two floors in height.

The C-W municipal code 23C.64 is a mixed-use zone with commercial on the first floor and up to three stories above that to a height of 50 feet, located along San Pablo Avenue and lower University and Ashby Avenues. Most of the Fourth Street retail district is zoned C-W. In the early 1990’s, the West Berkeley planning group tried to spiff up the strip by providing for nodes at key intersections that limited some uses but left the fine-tuning to a later date. The much needed planning has never happened despite consistent calls for further attention by local residents.

The San Pablo Avenue Plan was first referred by the City Council to the Planning Commission on March 14, 2000 by Breland and Maio. That's 17 years ago, way predating the current market conditions. So the need has been obvious for a very long time. The second referral was April 19, 2005 by Moore and Maio, and the referral is longer and more detailed because it was interwoven with the work plan, and a conflicting priority of south v. west. The third referral was July 14, 2015, just two years ago from Maio and Moore.

The most egregious omission in the C-W zoning is a lack of required step-downs and set-backs to protect adjacent houses, a feature of University Avenue standards designed to provide a transition to low-density neighborhoods and protect homes from shadowing, noise, and invasion of privacy. The resulting detriment can be seen at the rear of the Higby apartments on San Pablo and Ashby. A row of Section 8 one-story units is entirely shaded. The only time these tenants, mostly disabled elderly African-Americans, get a bit of sunlight on their tiny porches is mid-day is the summer.

At the other east corner of the Higby, a Victorian and its backyard cottage are likewise shaded, but they enjoy a smidgen more sunlight because the applicants, Mark Rhoades and Ali Kashani, negotiated a step-down in exchange for the owner’s support for the project. She appeared at the Council and ZAB to say that the new project would shield her property from noise along San Pablo Avenue, only to discover two years later that the step-down became a barbecue party terrace for the residents. She did get some new windows for her efforts, but the result of these shenanigans is one ugly eastern façade visible to the neighborhood and Ashby Avenue. Without required setbacks and step-downs, the applicant can say to owners of adjacent properties, “The City allows us to build five or six stories on your property line, but if you support the project I will give you a step-down and some double pane windows.” The current situation thus fosters bribery, blackmail, and a handy way to set the neighbors against each other so they don’t form a united front in opposition.

The ethical and professional alternative is to provide protections for the adjacent properties by design separations such as the daylight plane, aka the sun access plane, in use along San Pablo Avenue in El Cerrito and Albany. Whether the continued and deliberate omission of such protections in Berkeley constitutes a violation of the neighbors’ constitutional rights is a question yet to be determined.

Maxed out and in the pipeline

On July 27th, the Zoning Adjustments Board will consider the application of 2527 San Pablo Avenue, the first proposed six-story project (plus a mechanical penthouse) on San Pablo Avenue, one story higher than the controversial Shorenstein apartments at 1500, expected to break ground this fall. At the corner of Blake, 2527 San Pablo Avenue gets its extra floors from the density bonus, providing 6 very-low income (VLI) units among 63 total units. With only one 5´ setback required on the east side, the building covers the lot with no ground floor open space. The cantilevered bays give the exterior a bulging over-fed look that just adds to the mass.

The shadow studies show a significant shading of the three houses to the east that will lose winter sunlight, just when they need it the most. The traffic report by Abrams claims “there would be no significant transportation impacts according to established traffic engineering standards and no off-site traffic or transportation mitigations would be required” even though the business owners across the street report numerous collisions and near accidents at that corner.

The most interesting aspect of this project is how the developer Rony Rolnisky has forestalled criticism and distracted potential opponents by presenting it as housing for the developmentally disabled. “We would like to promote the possibility for housing for persons with developmental disabilities along with housing for families and parents of persons with developmental disabilities integrated within housing for the general population,” he wrote in the applicant’s statement. “Under this proposal we request that the provided "Very Low Income" and "Low Income" units be allocated to qualified persons with developmental disabilities. This is a population that is currently severely under-served for affordable housing, resulting in loneliness and community isolation.”

While this sounds noble, the design has only two indoor common areas, one small room off the lobby on the ground floor, another next to the roof on the sixth floor, which also features a laundry. Some units on the second floor have decks and others have balconies, but four floors have corridors with no natural lighting and no common space like an activity room to overcome “community isolation” for the residents of the six VLI units. The roof deck is outdoors and used by all. There are no amenities specifically designed for the disabled other than common access required by the ADA. But the support letters all express the feeling that this is a project with the developmentally disabled at heart. The next-door neighbor with the most to lose claims that “ There will be about 63 regular units being built of which 11 will be only for very low and low income,” when it’s 11% or just 6 units. Did the neighbor mishear or was she misinformed?

Is it legal to limit the affordable units to people with a certain disability? The City has a policy of distributing the affordable units throughout a building, which would make it harder to provide support for such tenants. These questions have yet to be addressed.

Is the Berkeley Planning Department corrupt?

I have heard assertions of corruption in several contexts, and it’s worrisome. My friends in the planning department would say that the question is an unfair assumption of guilt like, when did you stop beating your wife?

The thinking around this assumption goes like this. Since the planning department became the Planning and Development Department (PDD) and funded by permit fees as “an enterprise zone” not the general fund, they serve the developers not the neighborhoods. There is some truth to this concern. At the waterfront, another enterprise zone with a separate budget funded by fees, the staff lavishes attention on the boaters and tenants who pay for their services. But nobody complains that the waterfront staff is corrupt because they serve those customers. The planning staff mostly interacts with permit applicants, developers and homeowners, and so they see the problems of building as related to those clients. The neighbors want to be the customers, but we’re not. Our needs should be respected and integrated into the approval process, but sloppy, unfair zoning is the culprit.

The planners talk to each other, and that develops a group mentality that seeks the path of least resistance. An example is the R-1A standards that were referred to the Planning Commission twice by Council and once by the ZAB. At first the staff said that a revision wasn’t necessary because there weren’t many applicants. As a contributor to the discussion, I was later asked to collaborate with one of the primary developers to come up with a joint recommendation, presumably to save the staff some work. The developer and our group, Friends of R-1A, agreed that we had different interests and submitted our ideas separately. The staff liked the developer’s ideas more, which became the staff recommendation. This is how collusion happens, how the business plan of one developer gets the official stamp of approval. The staff wants those permit applications. They are in the business of developing housing to meet ABAG quotas. I fail to see how putting those permit fees into the general fund is going to change the culture of the planning department, but I could be wrong.

Revision of the zoning code requires extra time, effort, and funding that the planning department doesn’t have. They are so overwhelmed that they contract out some of the work. Budget revision is not going to solve that shortage, advance the work of the San Pablo Avenue plan, or create equity of zoning and property rights. Those problems are political, the result of district elections that has turned our Council members into ward heelers who only have to please their own constituents. It’s easy for them and their appointees to the Planning Commission, ZAB, and Design Review to promote unfair and detrimental development in another district, where they don’t have to answer to the residents.

Neighborhood activists should become better acquainted with the balanced zoning in other cities and advocate for modern form and design-based standards and stop blaming the planners. We need to inure ourselves to name calling and accusations of selfishness and stand up for our rights. The real NIMBYs are the Berkeley City Council.